DECEMBER, i8ox.

it iball have been paid to the creditor. The flieriff may TuRNIM
certainly make fuch payment out of court, if no circum- I.
ftance occuirs which legally obitructs or oppofes it, fuch FENDALL.
as an injunction from the court of chancery, in which cafe, f-
by the law of Virginia, the money muft b6 returned or an
execution againft the goods and chattels of the perion to
whom the money in his hands fhall be payable. In the
latter cafe it feems to the court Pcill to be the duty of the
iferiff to obey the order of the writ and to bring the mo-
ney into court, there to be difpofed of as the court may
dire&. This was done in the cafe of Armyead v. Phil-
pot, and in that cafe the court "diredted the money to be
paid in fatisfaaion of the.fecond execution. This ought
to- be done whenever the legal and equitable right to the
money is in the perfon whofe goods and chattels are lia-
ble to fuch execution.

In the cafe of Turner and Fendall, the fherifTnot having.

brought the money into court, but having levied an exe-
cution on it while in his hands, has not fufficiently jufti-
fled the non-pa) ment of it to the creditor ; and iberefore
the court committed no error in rendering judgment
againit him on the motion of that creditor. If the payment
of the damages fhould be againft equity, that was npt a
fubje& for the confidetation of the court of law which
rendered the judgment.

Judgment affirmed.

WILLIAM MARBURY
v.
JAMES MADISON, SECRETARY OF STATE
OF THE UNITED STATES.

FEBRUARY, 1803.

AT the laft term, viz. December term, X8or, MARIlURY

William Marbury, Dennis Ramfay, Robert Townfend v.
Hooe, and William Harper, by their counfel, Charles MADISON.
Lee, efq. late- attorney general of the United States,
S
 SUPREME COURT U. S.

MA feverally moved the court for a rule to Jatnes Madifon*l

.IBUPY
'v. fecrtary of fRate of the United States, tc fhew caufe
MADIsoW. why a mandamus flhould not iffue commanding him.to
Scaufe to be delivered to them refpedively their feveral
Th fupreme commiffions as juftices of the~peace in the diftri& of Co.
court of the U
States has n lumbia. This motion was fupportcdby affidavits of the
power to iffue following fa&s; that notice of this motion had beem
fecretary of to given
a" mandimus o.. to Mr. Madifon; that Mr. Adams,- the late prefi-
afateof the U of the Unted States,. nominated the applicants to the
fenate for their advice and confent to be appointed juf-
States, it being
an excrcife of tices of the peace of the diftrid of Columbia ; that the
vrgnaJurIfdic" fenate advifed and confented to the appoinrtments; that
tion not war-
ranted by the commiffions in due form were fig-ned by the faid prefi-
conftitution., dent appointing ihem jufticcs,. &c. and that the feal of
Congrcfs hav6 the United States was in due form affixed to the faid corn-
not power to niffions by tjie fecretary of fRate; that the applicants
jurifdiion to have. requcfted Mr. Madifon to deliver them their faid

the fuprene commiffions, who has notcoiplied with that requeft; ahd
courtn other that their faid commiffions are withheld from them; that
cafes than thofe
defcribed in the applicants have made application to Mr. Madifon as
confihtution. fecretary of fate of the United States at his office, for
Au adt of co,- information whether the commiffions were figned and
grefs repogna,. fealed as aforefaid; that explicit and faiisfadlory informa-
tion cannot be- tion has not been given in anfwer to that enquiry, either
come a law. by the fecretary of (Late or 4ny officer in the department
the courts of of flate; that application has been made to th fecretary

are boundto of the Senate for a certificate of the nomination of the

take notice of appjieants, and of the advice and confent of the fenate,
theconftituticon. who has declined giving fuch a certificate; whereupon a
A commifflonl
is not neceffary rule was laid to fhewcaufe on the 4th day of this term.
to the appoint- This rule having been duly ferved,
ment of an of-
ficerby the ex- Mr. Lee, in fupport of the rule, obferved that it was
ecetive-Senab.
A commiffuon important to know on what ground a juflice of peace in
isonly evidene, the diftrid of Columbia holds his office, and what pro-
of an appoint- ceedings are neceffar.y to couiftittte an appointment to
meat an office not held at the will of the prefident.
Delivers, is not.. . However
x1cceffary to the notorious the fads are, upon .the fuggeftion of which
validity of let- this rule has been lAid, yet the applicants have been
ters patent much embarraffed in obtaining evidence of them. Rea-
thePrefient fouable inforitation has been. denied at th- office of the
cannot autho-
rize a fecretary department of flate, Although a refpedful memorial
of flate tooinit has been made to the fenate pr aying them to fuffer their
the¢ perform. fecretary to give extrads from their exeeutive journals re-
 FEBRUARY, 1803.
ipeding the momination of the applicants to the fenafe, MARBVRV
and of their advice and confent to the appointments, yet IV.
their requeft has been denied, and their petition rejeted. MADISON

They have therefore been compelled to fummon wit-

neffes to attend in court, whofe voluntary affidavits they ane of thofe
could not obtain. Mr. Lee here read the affidavit of duties which
are enjoined by
Dennis Ramfay, and the printed journals of the fenate law.
of 31 January, -18o3, refpet-ting the refufal of the fe- A jufhice of
peace ill the
nate to fuffer their fecretary to give the information re- diflri& of Co-
quefted. He then called Jacob Wagner and Daniel lumbia i, not
Brent, who had been fummoned to attend the court, and removeable at
underftood, declined giving a voluntary he will of the
who had, as it is'
atidavit. They objeaed to being fworn, alleging that Prefident.
When a comn
they were clerks in the department of ifate and not million for 3n
bound to difclofe any fadls relating to the bufinefs or officer not hold-
ing his office at
tranfadions in the-office. the will of 'the
Prefident, is by
Mr. Lee obferved, that to fhew the propriety of ex- him figned and
flat remarks
amining thefe witneffes, he would make a few thte fecretarytoof
.Hi tranfolutted
on the nature of the office of fecretary of toetbefea-
His fate.
duties are of two kinds, and he exercifes his fundions in ed and record-
two diflin6 capacities ; as a public minifterial officer of ed, it is irre-
the United States, and as agent of the Prefident. In the ocble; the
appointment is'
lirtl his duty is to the United States or its citizens i . n romplete.
the other his duty is to the .Prefident ; in the one heiis A- mandamus
an independent, and an accountable officer ; in the other isremedy
the proper
to comn-
he is-dependent upon the Prefident, is his agent, and ac-'peI a fecretary
countable to 'him alone.. In the former capacity he is of Rate to de-
livertowhh
compellable, by randamus to do his duty; in the latter he fion a commif-
is not. This diftindion is clearly poiiited out by the two the which
teparty is in.
ads of c'ongrefs upon this fubjed. The firft waspaffed titled.
'27 th July, 1789, vol. I.p. 359, entitled " an ad for
eftablifhing an executive dcpartment, to be denominated
the department of foreign affairs." The firft fedion'afcer-
tains the duties of the fecretary fo far as he is confidered
as a mere executive agent. It is in thefe words, -Be it
" enaded, &c. that there fhall be' an executive depart-
f ment, to be denominated the department of foreign af-
c fairs, and that there (hall be a principal officer therein,
" to be called the fecretary of the department of foreign
c affairs, who flall perform. and execute fucji duties as
" fhall from time to time be enjoined on, or intrulted to
"him by the Prefident of the United States, agreeable
'to the conftitution, relative to correfpondencies, corn-
 SUPREME COURT U. S.

MANIBRY " miffions or iniftrudions to or with public minifters or

'L'. " confuls from the United States ; or to negQciations with
MADIsoN. " public minifters from foreign flates or princes, or to
" memorials or other applications from foreign public mi-
" nifters, or other foreigners, or to fuch other nhatters
" refpeding foreign affairs as the Prefident of the United
", States fhall aflign to the faid department; and further-
" more, that the faid principal officer fhall'condud the
cc bufinefs of the faid department in fuch manner as the
Prefident of the. United States fiall from time to time
"order or inftru&."
The fecond fection provides for the appointment of a
chief clerk ; the third fection prefcribes the oath to be
taken which is firniply, , well and faithfully to execute tht
"' truft committed to him ;" and' the fourth and laft fectiotr
gives him the cuftody of the books and papers of the
department of.foreign affairs under the old congrefs.
Refpe&ing the powers given and the duties impofed by
this ad, no mandamus will lie. The fecretary is re-
fponfible only to the Prefident. The other'a& of congrefs
refpe&ing this department was paffed at the fame feffion
on the I 5 th September I789, vol. 1, p. 41, c. 14, and is
entitled " An at to provide for the fafe keeping of the
c ads, records, and feal of the United States, and for'
other purpofes." The firft (ection changes the name of the
department and of the fecretary, galling the one the
department and the other the fecretary of ftAte. The
fecond feetion affigns new duties to the fecretary, in the per-
formance of which it is evident, from their natUre, he
cannot be lawfully controlled by the prefident, and for
the non-performance of which he is not more refponfible
to.'the p.efident fhan to any other citizen of the United
States. It provides that lie fha4ll.receive from the prefident
-all billS,orders, refolutions and votes of the fenate and houfe
of reprefentatives,whichfhallhave been approved and figrt-
ed by him.; and fhall caufe them to be publifhed, and print-
ed copies to be delivered to the fenators and reprefentatives
and to the executives of the feveral flates ; and makes it
his duty carefully to preferve the originals and to caufe
them to be tecorded in books to be provided -for that pur-
pofe The third fcEion provides a feal of. the United
States. The fourth makes it his duty to keep the faid
feal, and -to make out and record, ,and to affix the feal
of the United States to all. civil commiffions, after they
 FEBRUARY, 1863: .14t

fhall have been figned by the Prefident. The fifth fedion MAIBURY
piovides for a feal of office, and that all copies of records Iv.
and papers in his office, authenticated under that feal, MADIsoN.
flhall be. as good evidence as the originals. The fixth
fedion eftabilifhes fees for copies, &c. The feventh and
laft fedion gives him'the cuflody of the papers of the
ofl-ce of the fecretary of the old congrefs. Moft of the
duties affigned by this a& are of a public nature, and the
fecretary is bound to perform them, without the control
of any perfon. The Prefident has no right to prevent
him from receiving the bills, ordei's, refolutions and votes
of the legiflature, or from publiffing and diftributing
them, or from preferving or recording them. While the
fecretary remains in office the Prefident cannot take from
his cuftody the feal of the United States, nor prevent
him from recording, and affixing the feal to civil com-
miffions of fuch officers as hold not their offices at the
will of the.Prefident, after he has figned them and de-
livered them to the fecretary for that purpofe. By other
laws he is to make out and record in his office patents
for ufeful difcoveries, and patents of lands grailted uti.
der the authority of. the United States. I'n the perform-
ance of all thefe duties he is a public minifterial oflicer
of the United States. And the duties beinkg enjoined
upon him by law, he is, in executing them, uncontrol-
able by the Prefident; and if he negleats or refufes to
perform them, he may. be compelled by mandamus, in
the fame manner as other perfons holding offices under
the authority of the United States. The Prefident is no
party to this cafe. The fecretary is called upon to per.
form a duty over which the Prefident has no control, and
in regard to which he has no difpenfing power, and for
the negleCt of which he is in no manner refpotifible.
The fecretary alone is the perfon to whom they are en-
truffed, and he albne is anfwerable for thcir due perform-
ance. The fecretary of. flate, therefore,- being in the
fame fituation, as to thefe duties, as every other minifte-
rial officer of the United States, and equally liable to be
compelled to perform them, is alfo bound by the fame
rules of evidence. Thefe duties are not of a confidential
nature, but are of a public kind, and his clerks can have
nP exciufive privileges. There are undoubtedly faal,
which, may come to their knowledge by means of their
connexion with the fecretary of Rtate, refpecting which
 SUPREME COURT U. S.

MA1t 1rit they Cnnot be bound to anfwer. Such are thelaCts con-
q'. cerning foreign correfpondencies, and confidential com-
MAalsoa. munications betweeh the head of the department and the
Prefident. This, however, can be no obje&ion to their
being fworn, but may he a ground of obje&ion to any
particular queftion. Suppofe I claim title to land under
a patent from the United States., I demand a copy of it
from the fecretary of ifate. He refufes. Surely he may
be compelled by mandamus to give it. But in order to
obtain a mandamus, I muft fliew that the patent is re-
corded in his office. My cafe would be hard indeed if
-I could not' call upon the clerks in the office to give
evidence of that fa&. Again, fuppofe a private a& of
tongrefs had pafred for my benefit. It becomes neceffary
for me to have the ufe of that a& in a court of law. I
apply for a copy. I am refufed. Shall I not be permit-
ted, on a motion for a mandamus, to call upon the clerks
in the office to prove that fuch an aft is among the rolls
of the office, or that it is duly recorded ? Surely it can-
not be contended that although the laws are to be record-
ed, yet no accefs is to be had to the records, and no be-
nefit to refult therefrom.
The court ordered the witneffes to be fworn and their
anfwers taken in writing, but informed them that when
the queftions were afked they might ifate their obje&ions
to anfwering each particular queftion, if they had any.

. Mr. Wagner being examined upon interrogatories,

teftified,.that at this diftance of time he could not recol-
left whether he had feen any commiffion in the office,
conftituting the applicants, or either of them juftices of
the peace.. That Mr Marbury and Mr, Ramfay called
on the fecretary of ifate refpefting their commiffions.
That the fecretary referred them to him ; he took therm
into another room and mentioned to them, that two of
the commiffions had been figned, but the other had not.
That he did not know that fa& of 'his own knowledge,
but by the information of others. Mr. Wagner declined
anfwering the queftion ,, who gave him that informa-
tion ;" and the court decided that he was not bounl to
anfwer it, becaufe it was not pertinent to this caufe: He
further teftified that rome of the commiffions of the juf-
.ticesi but he believed not all, were recorded. He did not
know whether the commiflions of %he applicants were
 FEBRUARY, so.

recorded, as he had not had recourfe to the book for more MARSU Y
than twelve months paft. IV.
tMADISON.
Mr. Daniel Brent teftified, that he did not remember
certainly the names of any of the perfons in the com-
miffions of juftices of the peace figned by Mr. Adams ;
but believed, and was almoft certain, that Mr. Marbury's
and col. Hooe's commiffions were made out, and that
Mr. Ramfay's was not; that he made out the lift of
.names b which the clerk who filled up the commiffions
was guided; he believed that the name of Mr. Ramfay
was pretermitted by miftake, but to the beft of his know-
ledge it contained the names of the other two; he be-
lieved none of the commiffions for juftices of the peace
figned by Mr. Adams, were recorded. After the com-
millions for juftices of the peace were made out, he car-
ried them to Mr. Adams for his fignature. After being
figned he carried them back to the fecretary's office,
wherd the feal of the United States was affixed to them.
That commiffions are not ufually delivered out of the
office before they are recorded ; but fometimes they are,
and a note of them only is taken, and they are recorded
afterwards. He believed none of thofe commiffions of
juftices w.-re ever fent out, or delivered to the perfons
for whom they were intended; he did not know what
became of them, nor did he know that they are now in
the office of the fecretary of ftate.

Mr. Lincoln, attorney general, having been fummon-

ed, and now called, objeked to anfwering. He requefted
that the queftions might be put in writing, and that he
might afterwards have time to determine whether he
would anfwer. On the one hand he refpeied the'jurif-
diaion of this court, and on the other he felt himfelf
bound to maintain the rights of the executive. He was
aiing as fecretary of ftate at the time when this tranf-
a~kion happened. He was of opinion, and his opinion
was fupported by that of others whom he highly refpeE-
ed, that he was not bound, and ought not to anfwer, as
to any fa&s which came officially to his knowledge while
aaing as fecretary of ftate.
The queftions being written were then read and hand-
ed to him. He repeated the ideas he had before fug-
tefted, and faid his objections were of two kinds.
 144 SUPREME COURT U. S.

MARBURY ift. He did not think himfelf bound to difclofe his of-
.'. ficial tranfaaions while adiing as fecretary of ifate; and
MADISON.
4' * 2d. He ought not to be compelled to anfwer any thing
which might tend to crim.nate himfef.

Mr. Lee, in rcply, repeated the fubitance of the ob-

fervations he had before made in anfwer to the objedions
rf Mr. Wagner an l Mr. Brent. He ifated that the du-
ties of a fecretary of ftate were two-fold. In diftharging
one part of thofe duties he aded as a public minifterial
officer of the United States, totally independent of the
Prefident, and that as to any fads which came. officially
to his knowledge, while ad.1ing in this capacity, he was
as much bound to anfwer as a marfhal, a colledor, or
.any other minifterial officer. But that in the difcharge
of the other part of his duties, he did not a& as a public
minifterial officer, but in the capacity of an agent of the
Prefident, bound to obey his orders, and accountable tQ
him for his condu&. And that as to any fads which
came officially to his knowledge in the difcharge of this
part of his duties; he was not bound to anfwer. He
agreed that Mr. Lincoln was not bouid to difclofe any
thing which might tend to criminate himfelf.

Mr. Lincoln thought it was going a great way-to fay

that every fecretary of tate flould at all times be liable
to be called upon to appear as a Nvitnefs in a court of
jutice, and teftify to facs which came to his knowledge
officially. He felt himfelf delicately fituated between his
duty to this court, and the duty he conceived he owed to
an executive department; and hoped the court would
give him time to confider of the fubjcd.

The court faid, that if Mr. Lincoln wifled time to

confider what anfwers he fhould make, they would give
him time ; but they had no doubt he ought to anfwer.
There was nothing confidential required to be difelofed.
If there had been he was not obliged to anfwcr it ; and
if he thought that any thing was communicated to him
in confidence he was not bound to difclofe it ; nor was
he obliged to ftate any thing which would criminate him-
felif; but that the fadt whether fuch commiffions had been
in the office or not, could not be a confidential fa; ; it
 FEBRUARY, 1803. 145
is a fiCt which all the world have a right to know. If MABUlZr
he thought any of the queftions improper, he might ftate M. V.
his objedions.

Mr. Lincoln then prayed time till the next day to con-
fider of his anfwers under this opinion of the court.

The court granted it and pofiponed further confideratioa

of the caufe till the next day.

At the opening of the court on the next morning, Mr.

Lincoln faid he had no objelion to anfwering the quef-
tions propofed, excepting the laft which he did not think
himfelf obliged to anfwer fully. The queftion was, what
had been done with the commillions. He had no heft-
tation in faying that he did not know that they ever came
to the poffeffion of Mr. Madifon, nor did he know that
they were in the office when Mr. Madifon took poffeffion
of it. He prayed the. opinion of the court whether he
was obliged to difclofe what had been done with the corn-
miffions.

The court were of opinion that he was not bound to

fay what had become of them; if they. never came to
the poffeffion of Mr. Madifon, it was immaterial to the
prefent caufe, what had been done with them by others.

To the other' queftions he anfwered that he had feen

commiffions of juftices of the peace of the diftri& of
Columbia, figned by Mr. Adams, and fealed with the
feal of the United States. He did not recolled whether
any of them conifituted Mr. Marbury, col. Hooe, or col.
Ramfay, juftices of the peace; there were when he
went into the office feveral commiffions for juftices of
peace of the diftri made oui ; but he was furnifhed with
a lift of names to be put into a general commiffion,
which was done, and was confidered as fuperfeding the
particular commiffions; and the individuals whofe names
were contained in this general commiffion were informed
of their being thus, appointed. He did not know that
any one of tke commiflions was ever fent to the perfon
for whom it was made out, and did not believe that any
one had been fent.
 SUPREME COURT U. S.

/AARBURY Mr. Lee then read the affidavit of James Marflall,

'v. who had been alfo fummoned as a witnefs. It ftated
4ATs°"N. that on the 4 th of March i:o , having been informed
by fome perfon from Alexandria that there was reafou to
apprehend riotous proceedings in that town on that night,
he was induced to return immediately home, and to call
at the office of the fecretary of flate, for the commiffions
of the juftices of the peace ; that as many as .2, as he
believed, commiffions of juftices for that county were
delivered to him for which he gave a receipt, which he
left in the office. That finding he could not conveniently
carry the whole, he returned feveral of them, and ftruck
a pen through the names of thofe, in the receipt, which
he returneo. Among the commiffions fo returped, ac-
cording to the b&ft of his knowledge and belief, was one
'for colonel Hooe, and one for William Harper.

Mr. Lee then obferved, that having proved the exift-

encc of the commiffions, he fhould confine fuch further
remarks as he had to make in fupport of the rule to three
queftions :

ift. Whether the fupreme court can award the writ of

mandamus in any cafe.

2d. Whether it will lie to a fecretary qf flate in any

cafe whatever.

3 d. Whether in the prefent cafe the court may award

a .mandamusto James Madifon, fecretary of ftate.

The argument upon the ift queftion is derived not only

fronr f the principles and pradice of that country, from
whence we derive many of the principles of 'our political
inftitutions, but from the conftitution and laws of the
United States.

This is the fipreme court, and by reafon of its fupre-

macy muft have, the fuperintendance of the inferior tri-
bunals and officers, whether judicial or minifterial. In
this refped there is no difference between a judicial and
a minifterial officer. From this principle alone the court
of king's bench in England derives the power of iffuing
the writs of mandamus and prohibition. 3. Infit. 70, 71.
 FEBRUARY, 1803. 147
Shall it be faid that the tourt of king's Vexich has this MAitytit
power in confequenc of its being. the .fupreme court of I.
judicature, and ihall we deny it to this court vhich the MADISoN
conftitution makes thcfupreme court ? It is a beneficial, W"--"
and a neceffary power; and it can never be applied where
there is another adequate, fpec/iic, legal remedy.

The fecond felion of the third article of the .confti-

tution gives this court appellate jurifdifion in all cafes
in law and equity arifing under the conftitution and laws
f the United States (except the cafes in which it has ori-
ginal jurifdifion) with fuch exceptions, and under fuch re:
gulations as congrefs fhall make. The termn" appellate
jurifdialion" is to be taken in its largeft fente, and im-
plies in its nature the right of fuperintending the inferior
tribunals.

Proceedings in nature of appeals are of various kinds;

according to the fubjeft matter. 3 BI. con. 402. It
is a fettled and invariable principle, that every right,
when withheld, muft have a remedy, and every injury its
proper redrefs. 3 BI. corn. 1o9. There are forne in-
jurieswhich can only be redreffed by a writ of manda-
mus, and others by a writ of prohi2-tion. There muft
then be a jurifdiffion fome where tompetent to ifAu
that kind of procefs. Whereare we to 16ok fot it but
in that court which the conflitution and laws have made
fupreme, ana to which they have given appellate jurif-
dition ? Blakftone, vol. 3, P. i io. fays that a writ of
mandamus is " a command iffuing in the king's name
" from the court of king's bench, and direCted to any
"perfon, corporation or inferior court, requiring them
" to do fome particular thing therein fpecified, whieh
. apperiainsto their office and duty, 'and which the court
has previoufly determined, or at leaft fuppofes, to bd
"qonfonailt to right and juftice. It is a writ of L moft
"extenfively remedial'nature, and iffues in all cafes where
"the party has a right to have any thing done, and hat
"no ot/crfpecific means of compelling iti berfirmance."
In the Federalift, vol. 2, p. 239, it is faid, that the
word It appellate" is not to be taken in its technical fenfe,
as ufed in reference to appe.ls in the courfe of the civil
-law, but in its broadeft fei'fe. in which it denotes nothing
more than. the power of one tribunal to review the pro.r
 SUPREME COURT U. S.

MAtitisvr ceedings of another, either as tb law or fa&, or both.

,v. The writ of mandamus is in the nature of an appeal as
-MADI s. to fa& as well as law. It is competent for congrefs td
' * prefcribe the forms of procefs by which the fupreme court
fllall exercife its appelhite jurisdi&ion,. and they may well
declare a mandamus to be one. But the power does not
depend upon implication alone. It has been recognifed
by legiflative provifion as well as in judicial decifions in
this court.

Congrefs, by a law paffed at the very firft feffion after

the adoption of the confitution, vol. i.p. 58, fec. 13,
have cxprefsly given the fupreme court the power of iffu-
ing writs of mandamus. The words are, "The fupreme
it court fihall alfo have appellate jurisdidion from the cir.
c" cuit courts, and courts of the feveral flates, in the cafes
" herein after fpecially provided for; and fliall have power
" to iffue writs of prohibition to the diftri& courts, when
ci proceeding as courts of admiralty and maritime juris-
c diLion ; and writs of mandamus, in cafes warranted by
t, the principles and ufages of law, to any courts appoint-
ed, or perfons bolding office, under the authority of the
" United States."

Congrcfs is not r~ftrained from conferring original

jurisdifion in -other cafes than thofe mentioned in til
conflitution. 2 Dal. Rep. 298.

This court has entertained jurisdiCion on a mandamus

in one cafe, and or, a prohibition in another. In the cafe
of the Un*'ted States v.judge Lawrence, 3. Dal. Rep. 42,
a mandamus was moved for by.the attorney general at
the inflance of the French minifter, to compel judge
Lawrence to iffue a warrant againif captain Barre, com-
mander of the French fhip of war Le Perdrix, grounded
on an article of the confular convention with France. In
this cafe the power of the court to ifflue writs of mandamus,
was taken for granted in the arguments of counfel on
both fides, and feems to have been fo confidered by the
court. The mandamus was refutfed, becaufe the cafe in
which it was required, was not a proper one to fupport
'the motion. In thecafe of the United States v. judge
Peteis a writ of prohibition was granted, 3. Dal. Rep.
121, 129. This was the celebrated cafe of the French
 FEBRUARY, 1803.

corvette the Caffius, which afterwards became a fubje& MARIURY

of diplomatic controverfy between the two nations. On IV.
the 5th Feb. 1794, a motion was made to the fupreme MADISON.
court in behalf of one John Chandler, a citizen of Con-
ne6licut, for a mandamus to thefecretary at war, com-
manding him to place Chandler on the invalid penfion lift.
After argument, the court refufed the mandamus, becaufe
the two a6ts of congrefs refpecing invalids, did not fup-
port the cafe on which the applicant grounded his motion.
The cafe of the United States v. Hopkins, at February
term, i7 94 was a motion for a mandamus to Hopkins,
loan officer for the diftri& of Virginia, to command him
to admit a perfon to fubfcribe to the United States loan.
Upon argument the mandamus was refufed becaufe the ap-
plicant had not fufficiently eftabliflhed his title. In none of
thefe cafes, nor in any other, was the power of this court
to iffue a mandamus ever denied. Hence it appears there
has been a legiflative conftruction of the conftitution upon
this point, and a judicial pratice under it, for the whole
time fince 6he formation of the government.

2d. .The fecond point is, can a mandamus go to a fecre-

tary of tate in any cafe ? It certainly cannot in all cafes;
not to the Prefident in any cafe. It may not be proper
to mention this pofition ; but I am compelled to do it. An
idea has gone forth, that a mandamus to a fecretary of
fRate is equivalent to a mandamus to the Prefident of the
United States. I declare it to be my opinion, grounded
on a comprehenfive view of the fubje&, that the Prefi-
dent is not amenable to any court of judicature for the
exercife of his high fun6ions, but is refponfible only in
the mode pointed out in the conflitution. The fecretary
of tate acts, as before obferved, in two capacities. As
the agent of the Prefident, he is not liable to a mandamus ;
'but as a recorder of the laws of the United States ; as
keeper of the great feal, as recorder of deeds of land, of
letters patent, and of commiffions, &c. he is a minifterial
officer of the people of the United States. As fuch he has
duties afligned him by law, in the execution of which he is
independent of all control, but that of the laws. -It is true
he is a high officer, but he is not above law. It is not
confiftent with the policy of our political inflitutions, or
the manners of the citizens of the United States, that
any minifterial officer having public duties to perform,
 SUPREME COUR U. S.
MA.NIARY" f(hould be above the compulfion of law in the exercife o
P, thofe duties. As a minifterial officer he is compellable
MADIsON. todohis duty, and if he refufes, is liable to indi&ment.
Y A profecution of this kind might be the means of punifh-
ing the officer, but a fpecific civil remedy to the injured
party can only be obtained by a writ of mandamus. If a
mandamus can be awarded by this court in any cafe, it
may iflue to a fec-retary of fiate ; for the a& of congrefs
exprefsly gives the power to award it, "in cafes warrant-
ed by the principles and ufages of law, to any perfons
holding offices under the authority of the United States."

Many cafes may be fuppofed, in which a fecretary of

flate ought to be compelled to perform his duty fpecifi-
cally. By the 5 th and 6th fe&ions of the a& of congrefs,
vol. r. p. 43. copies under feal of the office of the depart-
ment of ftate are made evidence in courts of law, and
fees are given for making them out. The intention of
,the law muft have been, that every peifon needing a
copy fhould be entitled to it. Suppofe the fecretary re.
fufes to give a copy, ought he not to be compelled ? Sup-
pofe I am entitled to a patent for lands purchafed of the
United States; it is made out and figned by the Prefident
who gives a warrant to the'fecretary to affix the great feal
to the patent ; he refufes to do it ; thall I not have a mark-
damus to compel him ? Suppofe the feal is affixed, but
the fecretary refufes to record it; fhall he not be com-
pelled ? Suppofe it recorded, and he refufes to deliver it
fhall I have no remedy?
In this refpea there is no difference between a patent
for lands, and the commiffion of a judicial officer. The
duty of the fecretary is precifely the fame.

Judge Patterfon enquired of Mr. Lee whether he un-

derftood it to' be the duty of the fecretary to deliver a
commiffion, unlefs ordered fo to do by the Prefident.

Mr. Lee repliedi that after the Prefident has figned a

commiffion for an office not held at his will, and it comes
to the fecretary to be fealed, the Prefident~has done with
it, and nothing remains, but that the fecretary perform
thofe minifterial a&s which the law impofes upon him.
It immediately becomes his duty to feal, record, and de-
 FEBRUARY, 1803. 151

liver it on demand. In fuch a cafe the appointment be- MARBURv

comes c'mplete by th.e figi;ing and fealing ; and the fe- ,'.,
cretary does wrong if he withholds the commiffion. MADISON.

3 d. *Thethird poin t is,whether in the prefent cafe a

writ of mandamus ,ught to be awarded to James Madi-
fon, fecretary of ftate.

The juftices of the peace in the diftrid of Co lumbia

are judicial officers, and hold their office for five years.
Th iffice is eftablifhed by the ad of Congrefs pafltd the
27th of Feb. i8oi, entitled " An a& concerning the
ifri& of Co'umb a," ch. 86, fec. i i and 4; page 27r,
273. They are authorized to hold courts and have cog-
nizance of perfonal demands of the value of 2o dollars.
The a& of May 3 d, 18o2, ch. §2, fec. 4, confiders them
as judicial offi ers, aid provides the mode in which exe-
cution ihall ifliie upon their judgiients. They hold their
officcsiindependent of the will of the Prefident. The ap-
pointment of fuch an officer is complete when the Preli-
dent has nominated him to the fenate, and thq fenate have
advifed and conf nted, and the Prefident has figned the
commiffion and delivered it to the fecr'tary to be fealed.
The Prefident has thtn done with it; it becomes irre-
vocable. An appointment of a judge once completed,
is made forever. fie holds under the conifitution. The
requifites to be performed by the fecretary a e minifterial,
afcerained by law, and he has no difcretion, but muft
perform them ; there is no difpenfing power. In con-
templation of law they are as if done.

Thefe juftices exercife part of the judicial power of

the United States. They ought therefore to be inde-
pendent. Mr. Lee begged leave agai n to refer to the Fe-
deralift, vol. 2, Nos. 78r and 79, as containing a corredf'
view of this fubjea. They contained obfervations and
ideas which he wifhed might be generally read and un-
derflood. They contained the principles upon which
this branch of our conftitution was conftru6lted. It is
important to the citizens of this diftri6 that the juftices
Ihould be independent; almoft all the authority imme-
diately exercifed over them is that of the juftices. They
wifh to know whether the juflices of this diflridt are to
hold their commillions at the will of a fecretary of flate.
 SUPREME COURT U. S.
MARBupY This caufe may feem trivial at firft view, but it is im
'. portant in principle. It is for this reafon that this court
MADOSON. is now troubled with it. The emoluments or thc dignity
' ' of the office, are no objeds with the applicants. They
conceive themfelves to be duly appointed juftices of the
peace, and they believe it to be their duty to maintain the
rights of their office, and not to fuffer them to be violated
by the hand of power. The citizens of this difirit have
caeir fears excited by every firetch of power by a pcrfon fo
high in office as the fecretary of ftate.

It only remains now to confider whether a mandamus

to compel the delivery of a commiffion by a public mini-
fterial officer, is one of " the cafes warranted by the prin-
ciples and ufages of law."

It is the general principle of law that a mandamus lies,

if there be no other adequate, Ipeeiic, legal remedy; 3
Burrow, 1067, King v. Barker, an)J al. This feems ,to
be the refult of a view of all the cafes on the fubje&.

The cafe of Rex. v. Borough of Midhurft, Y. Wils.

283, was a mandamus to compel the prefentment of
certain conveyances to purchafers of burgage tenements,
whereby they would be entitled to vote for members of
parliament. In the cafe of Rex v. Dr. Hay, i. W. BI.
Rep. 640, a mandamus iffued to admit one to adminifter
an eflate.

A mandamus gives no right, but only puts the party

in a way to try his right. Sid. 286.

It lies to compel a minifterial aL which concerns the

public, i. Wilfon, 283. i. BI. Rep. 64o-although
there be a more tedious remedy, Str. 1082. 4 Bur. 2188.
2 Bur. 1045 ; So if there be a legal right, and a remedy-
inequity, 3. Term Rep. 652. A mandamus lies to ob-
tain admiffion into a trading company. Rex v. Turkey
Company, 2 Bur. iooo. Carthew 448. 5 Mod. 402 ;
So it lies t3 put the corporate feal to an infirument. 4.
Term. Rep. 699 ; to commiffioners of the excife to grant
a permit, 2 Term. Rep. 381 ; to admit to an office, 3
Term. Rep. 5751 to deliver papers which concern the
public, 2 Sid. 3 '. A mandamus will fometimes lie in a
 FEBRUARY, 1803.

doubtful cafe, z Leviiz 123, tobe further confidered on MARBUSY

thereturn, 2 Levinz, 14. 1 Siderfin, x69. IV.
MAP1SONq.

It lies to be admitted a member of a church, 3. Bur. '-"€

1265, IO43.

The procefs is as ancient as the time of Ed. 2d. i I.e-

vinz 23.

The firft writ of mandamus is not peremptory, it only

commands the officer to do the thing or fhew caufe why
he fbould not do it. If the caufe returned be fufficient,
there is an end of the proceeding, if not, a peremptory
mandamus is then awarded.

It is faid to be a writ of difcretion. But the difcretion

of a court always means a found, legal difcretion, not' an
arbitrary will. If the applicant makes out a proper cafe,
the court are bound to grant it. They cai refufe juftice
to no man.

On a fubfequent day, and before the court had given

an opinion, Mr. Lee read the affidavit of Hazen Kimball,
who had been a clerk in the office of the Secretary. of
State, and had been to a diftant part of the United States,
but whofe return was not known to the applicant till after
the argument of the cafe.

It fated that on the third of March, 8oi, he was a

clerk in the department of flate. That there were in the
office, on that day, commiffions made out and fAgned by
the prefident, appointing William Marbury a juftice of
peace for the county of Wafhington ; and Robert r. Hooe
a juftice of the peace for the county of Alexandria, in
the diftri&l of Columbia.
Afterwards, on the 24 th of February the following
opinion of the court was delivered by the chief juftice.

Opinion of the court.

At the laft term on tle affidavits then read and filed

with the clerk, a rule was granted in this cafe, requiring
the fecretary of fRat to fhew caufe why a mandamus
 SUPREME COURT U. S.
MARBURY fhould not iffue, direding him to deliver'to William
V. Marbury his commiffion as a juftice of the peace for the
MADISON. county of Waflhington, in the diftrid of Columbia.

No caufe has been fhewn, and the ptefent motion is

for a man,4amus. The peculiar delicacy of this cafe, the
novelty of fome of its circumftances, and the real diffi,
culty attending the points which occur in it, require a
complete expofition of the principles, on which the opi-
nion to be given by the court, is founded.

. Thefe principles have been, on the fide of the appli-

cant, very ably. argued at the bar. In rendering the opi-
nion of the court, there will be fome departure in form,
though not in fubfcaice, from the points flated in that.
argument.

In the order in which the court has viewed this fubje&,

the following queflions have becen confidered and decid-
ed.

ift Has the applicant a right, to the commiffion he

demands?

2dly. If he has a'right, and that right has been violated,

do the laws of his country afford him a remedy ?

3dly. If they do afford him a remedy, is it a mianda-

mus iffluing from this court ?

The firft obje& of enquiry is,

ift. Has the applicant a right to the commiffion he de-

mands ?

His right originat s in an ad of congrefs paffed in

February 8oi, concerning the diftri, of Columbia.

After dividing the diftri& into two counties, the i Ith

fedion of this law, enats, " that there fhall be ap-
pointed in and for each of. the faid counties, fuch num-
ber of difcreet perfons to be juilices of the peace as the
prefident of the United States fhall, from time to time,
think expedient, to continue in office for five years.
 FEBRUARY, 1803.

It appears, trom the affidavits, that in compliance with MARUKIr-

this law, a commiffion for William Marbury as a juftice 0V.
of peace for the county-f Wafhington, was figned by Mvtsow.
John Adams, then prefident of the- Unit-d States ; after -
which the feal of the United St ites wA-fixed to it;
but the commiffion has never reached the perfon for
whom it was made out.

In order to determine whether he is entitled to this

commiffion, it becomes neceffary to enquire whetiher he
has been appointed to the 6ffice. For if he has been ap-
pointed, the law continues him in office for five years,
and he is entitled to the poffcffion of thofe evidences of
Qffice, which, being completed, became his property.

The 2d feaion of the 2d article of the conifitution,

declares, that, 1'the prefident (hall nominate, and, by
,'and with the advice and confent of the fenate, fhall
" appoint ambaffadors, other public minifters and confuls,
" and all other officers of the United States, whofe ap-
" pointments are not otherwife ptovided for."

The third fe&ion declares, that ",he fhall commiffion

,,all the officers of the United States."

An a& of congrefs direCts the fecretary of ifate to

keep the feal of the United States, 1'to make out and
record, and affix the faid feal to all civil commiffions
to Officers of the United 'states, to be appointed by the
Prefident, by and with the confent of the fenate, or
by the Prefident alone; provided that the faid feal fhall
not-be affixed to any commiffion before th*e fame hall
have been figned by the Prefident of the United States."

Thefe are the claufes pf the conflitution and laws of

the United States, Which affe&t this part of the cafe;
They feem to contemplate three diftin& operations:

it, 'The nomination. This is the fole aCk of the Pre-

fident, and is completely voluntary.

2d. The appointment. This is alfo the at of the Pre-

fident, and is alfo a voluntary a&, though it~can only be
performed by and with the advice and confent of thle
fenate.
 SUPREME COURT U. S.

MARBURY 3 d. The commiffion. To grant a commiffion to a

IIV. perfon appointed, might perhaps be deemed a duty en-
MAOsoN. joined by the conflitution. " He fhall," fays that inftru-
ment, " commiflion all the officers of the United States."

The acts of appointing to office, and commiffioning the

perfon appointed, can fcarcly be confidered as one and
the fame; fince the power to peiform them is given in
two feparate and diflindt fections of the conftitution.
The diftintion between the appointment and the com-
miffion will be rendered more apparent, by adverting to
that provifion in the fecond fedion of the fecond article
of the conftitution, which authorizes congrefs " to veft,
by law, the appolitment of fuch inferior officers, as they
think proper, in the Prcfident alone, in the courts of law,
or in the heads of departments ;" thus contemplating
cafes where the law may dire& the Prefident to commif-
fion an officer appointed by the courts, or by the heads
of departments. In fuch a cafe, to iffue a commiffion
would be apparently a, duty diffiner from the appoint-
ment, the performance of which, perhaps, could not
legally be refufed.

Although that claufe of the conflitution which requires

the Prefident to commiffion all the officers of the United
States, may never have been applied to officers appointed
otherwife than by himfelf, yet it would be difficult to
deny the legiflative power to apply it to. fuch cafes. Of
confequence the confitutional diftin6tion between the ap-
poirtment to an office and the commiffion of an officer,
who has been appointed, remains the fame as if in prac-
tice the Prfidet had commiffioned officers appointed by
an authority other thanhis own.

It follows too, from the exiftence of this diftin6ion,

that, if an appointment was to be evidenced by any pub-
lic ad,'othLr than the commiffion, the performance of
fuch public at would create the officer ; and if he was
not removeable at the will of the Prefident, would either
give him a right to his commiffion, or enable him to per-
form the duties without it.

Th efe obfcrvaticns are premifed folely for the purpofe

of rbndering more iiitelligible thofe which apply more
dirce-ly tW the particular cafe under confideration.
 FEBRUARY, 1803. IS7

This is an appointment made by the Prefident, by and MADBuIv

with the advice and confent of tje fenate, and is evi- .V -
denced by no ad but the commiffion itfelf. In fuch a MADISo1i.
cafe therefore the commiffion and the appointment feem "
infeparable; it being almoft impoffible to fhew an appoint.
ment otherwife than by proving the exiffence of a com-
miffion; ftUll the commiffion is not neceffarily the appoint-
ment ; though conclufive evidence of it.

IBut at what ftage does itamount to this conclufive

evidence?.

The anfwer to this queftion feems an obvious one.

The appointment being the fole a& of the Prefident,
mull be completely evidenced, when it is ihewn that he
has done every thing to be performed by him.

Should the commiffion, inftead of being evidence of

an appointment, even be confidered as conftituting, the
appointment itfelf ; frill it would be made when the laft
ud to be done by the Prefident was performed, or, at
furtheft, vhen the commiffion was complete.

The laft a& to be done by the Prefident, is the figna-

thire of the commiffion. He has then.a6ked on the ad-
vice and confent of the fenate to his own. nomination.
The time for deliberation has then paffed. He has de-
cided. His judgment, on the advice and confent of the
fenate concurring with his nomination, has been made,
and the officer'is appointed. This appointment is e'vi-
denced by an open, unequivgcal a; ; and being the laft
ad requireAt from the perfon making it, necellarily excludes
the, idea of its beihg, fo far as refpeds the appointment,
an inchoate and incomplete tranfadion.

Some point of time mull, be taken when the power of

-the executive over an officer, not removeable at his will,
mull ceafe. That point of time mufl be when the con-
flitutional power of appointment has been exercifed.
And this power has been exercifed when the laf a&, re-
quired from the perfon poffeffing the power, has been
performed. This laft a& is the .'fignature of the com.
.miffion. This idea feems to have prevailed with the le-
giflature, when the ad paffed, converting the department
 IS& .SUPREME CQURT U. S.
taIs3uti of foreign affairs, into the-department of ftate. By that
.,'IV. a& it is ena&edi that the fecretary of ftate fhall keep the
MDlssON. feal of the United States, g and ihall make odE and re-
cord, and (hall affix the faid feal to all civil commiffion,
" to officers of the United States, to be appointed by the
" Prefident :" " Provided that the faid real (hall not be af-
it fixed to any commiffion, before the fame (hall have been
"figned by the Prefident of the United States ; nor to
" any other inftrument or atL, without the fpecial war-
- rant of the Prefident therefor."

The fignature is a warrant for affixing the great feal to

the commiffion; and the great feal is only to be affixed
to an inftrument which is complete; It attefts, by an
a& fuppofed to be of public notoriety, the verity of the
Prefidential fignature.

It is never to be affixed till the commiffion is figned, be-

caufe the fignature, which gives force and effeit to the
commiflion, is conclufive evidence.that the appointment.
is made.

The commiffion being figned, the fubfequent duty of

the fecretary of ftate is prefcribed by law, and not to be
guided by the will of the Prefident. He is to affix the
feal of the United States to the commiffion, and is to re-
cord it.

This is not a proceeding which may be varied, if the

judgment of the executive fhall fuggeft one more eligible;
ut is a precife courfe accurately marked out by law, and
is to be ftritly purfued. It is the duty of the fecretary
of ftate to conform to the law, and in this he is an of-
ficer of the United States, bound to obey the laws. He
afts, in this refpe&, as has been very properly ifated at
the bar, under the authority of law, and not by the in-
ftruitions of the Prefident. It is a miinifterial ait which
the law enjoins on a particular officer for a particular pur-
pofe.

If it.fhould be fuppofed, that the folemnity of affixing

tfie feal, is'neceffary not only to the validity of the com-
miffion, but even to the completion of an appointment,
lill when the feal is affixed the appointment is made, and
 FEBRUARY, 1o83.

the commiffion is valid. No other folemnity is required MARUIT.

by liw ; no other a& is to be performed on the part of '.
government. All that the executive'can do to inveft the MADISON.
'perfon with his office, is done; and unlefs the appoint-
ment be then made, the executive cannot make one with-
out the co-operation of others.

After fearching anxioufly for the principles on which

a contraxy opinion may be fupported, none have been
found which appear of fufficient force to maintain the op.
pofite dofrine.

Such as the imagination of the. court could fuggeft,

have been very deliberately examined, and after allowing
them all the weight which it appeats poffible to givethem,
they do not fhake the opinion which has been formed.

In confidering this queftion, it has been conje&ured

that the commiffion may have been affimilated to a deed,
to the validity of which, delivery is effential.

This idea is founded on the fuppofition that the com-

miffion is not merely evidence of an appointment, but is
itfelf the atual appointment; a fuppofition by no means
unqueftionable. But for the purpofe of examining this
objeffion fairly, let it be conceded, that the principle,
claimed for its fupport, is eftablifhed.

The appointment being, under the conftitution, to be

made by the Prefident perfonally, the delivery of the deed
of app6intment, if neceffary to its completion, muft be
made by the Prefident alfo. It is not neceffary that the
livery fhould be made perfonally to the grantee of the of-
fice : It never is fo made. The law would feem to.con-
template that it (hould be made to the fecretary of Qrate,
fince it dire~ts the fecretary to affix the feal to the com-
miffion after it fliall have been figned by the Prefident.
If then the at of livery be neceffary to give validity to
the commiffion, it has been delivered whin executed and
given to the fecretary for the purpofe of being fealedi
recorded, and tranfmitted to the party.

But in all cafes of letters patent, certain folemnities

are required by law, which folemnities are the evidences
 SUPREME COURT U. S.

14AILBUIY of the validity of the inftrument. A formal delivery to

, W. the perfon is not among them. In cafes of cormmiffions,
MADISO. the fign manual of the Prefident, and the feal' of the
S v -United States, are t'ofe folmnities. This obje&ion
therefore does not touch the cafe.

It has alfo occurred as poffible, and barely poffible,

that the tranfmiffion of the commiffion, and the accept-
ance thereof, might be deemed neceffary to complete the
right of the"plaintiff.

The tranfmiffion of the commiffion, is a pra&ice di-

redfted by convenience, but not by law. It cannot there-
fore be' neceffary to coniltute the appointment which
muft precede it, and which is the mere aa of the Prefi-
dent. If the executive required that every perfon ap-
pointed to an office, fhould himfelf take means to pro-
cure his commiffion, -the appointnent would not be the
lefs valid on that account. The appointment is the fole
aa of the Prefident ; the tranfmiFi6n of the commiflon
is the fole a& of the officer to whom that duty is afligned,
and may be accelerated or retarded by circutnftances which
can have no influence on the appointment. A commif-
fion is tranfmitted to a perfon already appointed; not to
a perfon to be appointed or not, as .the letter enclofing
the commiffion fhould happen to get into the poft-office
and reach him in f~afety, or to mifcarry.

It may have ome" tendency to elucidate this point, to

enquire, whether thle pofefefion of the original commif-
fion be indifpenfably ncceffary to authorize a perfon, ap-
pointed to any office, to perform the duties of that of-
fice. If it-was neceffary, then a lofs of the commiffion
would lofe the office. Not only negligence, but accident
or fraud, fire or theft, might deprive an individual of
his office. In fuch a cafe, I prefume it could not be
doubted, but that a copy from the record of the office
of the fecretary of ftate, would be, to every intent and
purpofe, equal to the original. The a&t of congrefs has
exprefsly made it fo. To give that copy validity, it would
nbt be neceffary to prove'that the original. had been tranf-
mitted and afterwards loft. The copy vould be com-
plete evidence that the.origiual had exifted, and that the
appointment had been made, but, not that the original
had been tranfmitted. if indeed it fhould appear that
 FEBRUARY, 1803., z6X
the original had been miflaid in the office of"fate, that MAINUuT
circumftance would not affed the operation of the copy. v.
When all the requifites have been performed which au- MADIsoW1
thoriae a recording Qfficer to record any intrument what-.
ever, and the order for that purpofe has been given, the
inftrument is, in law, confidered as recorded, although
the manual labour of inferting it in a book kept for that
purpofe may not have been performed.

In the cafe of commiffions, the law orders the fecretary

of ftate to record them. When therefore they are figned
and fealed, the order for their being recorded is given;
and whether inferted in the book or not, they are in law
recorded.

A copy of this record is declared equal to the original,

and the fees, to be paid by a perfon requiring a copy, are
afcertained by law. Can a keeper of a public record,
erafe therefrom a commiffion which has been recorded?
.Orcan he refufe a copy thereof to a perfon demanding it
on the terms prefcribed by law ?

Such a copy would, eqially with the original, authorize

the j'uftice of peace to proceed in the performance of his
duty, becaufe it would, equally with the original, atteft
his appointment.

If the tranfmiffion of a commiffion be not confidered

as neceffary to give validity to an appointment; frill,
lefs
is its acceptance. The appointment is the fole a&t of
the Prefident; the acceptance is the fole acl of the of-
ficer, and is, in plain'common fenfe, pofterior to the ap-
pointment. As he may refign, fo may he refufe to ac-
cept: but neither the one, nor the other, is capable of
-rendering the appointment a non-entity.

That this is the underftanding of the government, is

apparent from the whole tenor of its condud.

A commiffion bears date, and the fialary of the officer

commences from his appointment; not from the tranf-
miffion or acceptance of his comnrion. When a per-
fon, appointed to any office, refufes to accept that office,
the fucceffor is nominated in the place of the perfon who
x
 SUPREME COURT U. S.
$AaDL
ua" has declined to accept, and not in the place of the perfos'
V. who had been previoufly in office, and had created the
MAbmsoW. original vacancy.

It is therefore decidedly the opinion of the court, that

when a commiffion has been figned by the Prefident, the
appointment is made; and that the commiffion is com-
plete, when the feal of the United States has been affix-
ed to it by the fecretary of Rtate.

Where an officer is rernoveable at the will of the ex-

ecutive, the circumftance which completes his appoint-
ment is of no concern ; becaufe the ad is at any time
revocable; and the commiffion may be arrefted, if Rtill
in the office. But when the officer is not removeable at
the will of the executive, the appointment is not revoca-
ble, and cannot be annulled. It has conferred legal
rights which cannot be refumed.

The difcretion of the executive is to be exercifed un-

til the appointment has been made. But having once
nmde the appointment, his power over the office is ter-
minated in all cafes, where, by law, the officer is not
removeable by him. The right to the office is then in
the perfon appointed, and he has the abfolute, uncondi-
tional, power of accepting or rejedting it.

Mr. Marbury, then, fince his commiffion was figned

by the Prefident, and fealed by the fecretary of ftate, was
appointed ; and as the law creating the office, gave the
officer a right to hold for five years, independent of the
executive, the appointment was not revocable; but veft-
ed in the officer legal rights, which are proteaed by the
laws of his country.

To withhold his commiffion, therefore, is an ad deem-

ed by the court not warranted by law, but violative of a
vefted legal right.

This brings us to the fecond enquiry; which is,

2dly. If he has a right, and that right has been violated,

do the laws of hiscountry afford him a remedy?
 FEBRUARY, 1803. 03
The very effience of civil liberty certainly confifts in MA.RtIIo
the right of every individual, to claim the protefion of I.
the laws, whenever he receives an injury. One of the MADISON.
firft duties of government is to afford that prote~ion. 4 Y'-
In Great Britain the king himfelf is fued in the refpecful
form of a petition, and he never fails to, comply with
the judgment of his court.

In the 3d vol. of his commentaries,. p., 23, Blackftone

ftates two cafes in which a remedy is aforded by mere ope-
ration of law.
" In all other cafes," he fays, "it is a general and indif-
" putable rule, that where there is a legal right, there ii
" alfo a legal remedy by fuit or aftion at law, whenever
c,that right is invaded."
And afterwards, p. i09, of the fame vol. he fays, if I
" am next to confider fuch injuries as are cognizabli by
cthe courts of the common law. And herein I thall for
"Cthe prefent only 4 emark, that all poffible injuries whai-
ic foever, that did not fall within the exclufive cognizance
" of either the ecclefiaftical, military, or maritime tribu-
" nals, are for that very reafon, within the cognizance
"of the common law courts of juftice; for it is a fettled
" and invariable principle in the laws of England, that
"every right, when withheld, muft- have a rediedy, and
"every injury its proper redrefs."
The government of the United States has been em-
phatically termed a government of laws, and not of men.
It will certainly ceafe to deferve this high appellation, if
the lawq furnifh no remedy for the violation of a vefted
legal right.
If this obloquy is to be caft on the jurifprudence of our
country, it muft arife from the peculiar charaaer of the
cafe.
It behoves us then to enquire whether there be in its
compofition any ingredient which Thall exempt it from
legal inveftigation, or exclude the injured party from le-
gal redrefs. In purfuing this enquiry- the firft queftion
which prefents itfelf, is, whether this can be arranged
 SUPREME COURT U. S.

Atit.uiur with that clafs ot cafes which come under the defcription
M,. of damnnum abfque injuria-alofs without an injury.
MADISON.
1v*' This defcription of cafes never has been confidered,
and it is believed never can be confidered, as comp're-
hending offices of trufi, of honor or of profit. The of-
fice of juflice of peace in the difiri& of Columbia is
fuch an office ; it is the;efore worthy of the attention
and guardianfhbp of the laws. It has received that at-
tention and guardianfhip. It has been created by fpecial
ad of congrefs,' and has been fecured,- fo far as the laws
can give fecurity to the-perfon appointed to fill it, for five
years. It is not then on account of the worthlefsnefs
of the thing purfued, that the injured party can be alleged
to be without remedy.

Is it in the nature of the tranfadion ? Is the ad of

delivering or withholding a comrpiffion to be confidered
as a mere political a&, belonging to the executive de-
pariment alone, for the performance of which, entire
confidence is placed by our conftitution in the fupreme
executive; and for any mifcondu& refpe&ing which, the
injured individual has no remedy.

That there may be fuch cafds is not to be queftioned;

but that every a& of duty, to be performed in any of the
great departments of government, *confltitites fuch a.cafe,
is not to be admitted.

By the a& concerning invalids, paffe4. in June, 1794,

vol. 3. p. T12, the fecretary at war is ordered to place
on the penfion lift, all perfons whofe names are contain-
ed in a report previoufly made by him' to coogrefs. If he
fhould refufe to ,do fo,. would the wounded veteran be
without remedy ? Is it to be contended that where the
law in precife terms, dirxs the performance of an ad,
in which an individual is interefted, the law is inca.
pable of fecuring obedience to its mandate ? Is it on
account of the chara&er of the perfon againft whom the
complaint is made ? Is it to be contended that'the heads
of departments are not amenable to the laws of their
country ?

Whatever the pradice on particular occafions may be,

the theory. of this Principle will certainly never be main-
 FEBRUARY, i 8o3.

tained. No a& of the fegifiature confers fo extraordi- MARBtRT

nary a privilege, nor can it derive countenance from the IV.
do&rines of the common law. After flating that per- MADISON.
fonal injury from the ldng to a fubje& is prefumed to be
impoffible, Blackftone, vol. 3. P. 255, fays, "but injuries
cc to the rights of property can fcarcely be committed by
" the crown without the intervention of its officers; for
cc whom, the law, in matters of right, entertaihs no re,
1 fpe& or delicacy; but furtifhes various methods of de-
" teding the errors and mifcondu& of thofe agents, by
"cwhom the king has been deceived and induced to do a
"c temporary i.-juftice."

By the a& paffed in 1796, authorifing the fale of the

lands above the mouth of l(entucky river (vol. 3 d. p.
299) the purchafer, on paying his purchafe money, be-.
comes completely entitled to the property purchafed;
and on producing to the fecretary of ftate, the receipt of
the treafurer upon a certificate required by the law, the
prefident of the United States is authorifed to grant him
a patent. It is further enadted that all patents fhall be
count6rfigned by the fecretary of ftate, and recorded in
his office. If the fecretary of ftate fhould choofe to
withhold this patent ; or the patent being loft, fhould
refufe a copy of it; can it be imagined that the law fur-
nifhes to the injured perfon no remedy ?

It isnot believed that any perfon whatever would

attempt to maintain fuch a propofition.

It follows then that the queftion, whether the legality

of an aCt of the head of a department be examinable in a
court of juftice or not, muff always depend on the nature
of that ad.

If fome a&s be examinable, and others not, there muft

be fome rule of law to guide the court in the exercife of
its jurifdi&ion.

In fome .inftances there may be difficulty in applying

the rule to particular cafes ;,but there cannot, it is believ-
ed, be much difficulty in laying down the rule.

By the conftitution of the United States, the Prefident

is' invefted with certain important political powerg; in the
 SUPREME COURT U. 5.

MARBUxY exercife of which he is to ufe his own difcretion, and is

'V. accountable only to his country in his political chara&er,
MADISON. and to his own confcience. To aid him in the perform-
ahce of thefe duties, he is authorized to appoint certain
officers, who ad by his authority and in conformity with
his orders.

In fuch cafes, their ads are his ads ; and whatever

opinion may be entertained of the manner in which exe-
cutive difcretion may be ufed, fiill there exifts, and can
exift, no power to control that difcretion. The fubjeds
are political. They refped the nation, not individual
rights, and being entrufted to the executive, the decifion
of the executive is conclufive. The application of this
remark will be perceived by adverting to the a& of con-
grefs for eftablifhing the department of foreign affairs.
This officer, as his duties were prefcribed by that ad, is
to conform precifely to the will of the Prefident. He is
the mere organby whom that will is communicated. The
a&s of fuch an officer, as an officer, can never be exa-
minable by the courts.

But when the legiflature proeeeds to impofe on that

officer other duties; when he is direted peremptorily to
perform certain ats ; when the rights of individuals are
dependent on the performance of thofe a6s ; he is fo far
the ofFicer of the law ; is amenable to the laws for his
coDdu6 ; and cannot at his difcretion fport away the
vefted rights of others.

The conclufion from this reafoning is, that where the

heads of departments are the political or confidential
agents of the executive, merely to execute the will of
the Prefident, or rather to ad in cafes in which the exe-
cutive poffeffes a conftitutional or legal difcretion, nothing
can be more perfedly clear than that their ads are only
politically examinable. But where a fpecific duty is af-
figned by law, and individual rights depend upon the
performance of that duty, it feems equally clear that the
individual who confiders himfelf injured, has a right to re-
fort to the laws of hi's country for a remedy.

If this be the rule, let us enquire how it applies to the

cafe under the confideration of the court.
 FEBRUARY, 1803. 167
The power of nominating to the fenate, and the pow- MA PBU RY
er of appointing the perfon nominated, are political pow- V.
ers, to be exerifed by the Prefident according to his own MAD;so N.
difcretion. When, he has made an appointment, he has '-v'--
exercifed his whole power, and his difcretion has been
completely applied to the cafe. If, by law, the officer be
removable at the will of the Prefident, then a new ap-
pointment may be immediately made, and the rights of
the officer are terminated. But as a fa& which has ex-
ifted cannot be made never to have exifted, the appoint-
ment cannot be annihilated ; and confequently if the of-
ficer is by law not removable at the will of the Prefident ;
the rights he has acquired are protected by the law, and
are not refumable by the Prefident. They cannot be ex-
tinguifhed by executive authority, and he has the privi-
lege of afferting them ih like manner as if they had been
derived from any other fource.

The queftion whether a right has vefted or not, is, in

its nature, judicial, and muft be tried by the judicial autho-
rity. If, for example, Mr. Marbury had taken the oaths
of a magiffrate, and proceeded to aft as one ; in confe-
quence of which a fuit had been infiituted againft him,
in which his defence had depended on his being a magif-
trate ; the validity of his appointment muft have been
determined by judicial authority.

So, if he conceives that, by virtue of his appointment, he

has a legal right, eithe to the commiffion which has been
made out for him, or to a copy of that commiffion, it is
equally a queftion examinable in a court, and the decifion
of the court upon it muft depend on the opinion enter-
tained of his appointment.

That queftion has been difcuffed, and the opinion is,

that the lateft point of time which can be taken as that
at which the appointment was complete, and evidenced,
was when, after the fignature of the prefident, the feal of
the United States was affixed to the commiflion

It is then the opinion of the court,

ift. That by figning the commiffion of Mr. Marbury,

the prefident of the United States appointed him'ajuftice
 SUPREME COURT U. S.

MARDURY of peace, for the county of Wafhington in the diftri&

.V. of Columbia ; and that the feal of the United States, af-
MAD ToN. fixed thereto by the fecretary of ftate, is conclufive tef-
'timony of the verity of the fignature, and of the com-
pletion of the appointment ; and that the appointment
conferred on him a legal right to the office for the fpace
of five years.

2dly. That, having this legal title to the office, he has

a confequent right, to the commiffion ; a re fufal to deliver
which, is a plain violation of that right, for which the
laws of his country afford him a remedy.

It remains to be enquired whether,

3dly. He is entitled to the remedy for which he ap-

plies. This depends on,

ift. The nature of the wriE applied for, and,

2dly. The power of this court.

ift. The nature of the writ.

Blackftone, in the 3 d volume of his commentaries,

page i 1o, defines a mandamus to be, " a command if-
cc Cuing in the king's name from the court of king'6 bench,
,,and dire&ed to any perfon, corporati n, or inferior
" court of judicature within the king's dominions, re-
,,quiring them to do fome particular thing therein fpeci-
c fled, which appertains to their office and duty, and
"which the court of king's bench has previoufly deter-
cc mined, or at leaf fuppofes, to be confonant to right
cc and juftice."

Lord Mansfield, in 3 d Burrows 1266, in the cafr of

the King v. Baker, et al. fates with much precifion and ex-
plicitnefs the cafes in which this writ may be ufed.

,WWhenevir," fays that very able judge, " there is a

" right to execute an office, perform a fervice, or exercife
cc a franchife (more efpecially if it be in a matter of pub-
cc lic, concern, or attended with -profit) and a perfon is
is kept out of poffeffion, or difpoffeffed of fuch right,.and
 FEBRUARY, 1803. 169

V has no other fpecific legal remedy, this court ought MAkBUIL-,

"9to affift by mandamus, upon reafons of juftice, as the IV.
"9writ expreffes, and upon reafons of public policy, to MADISON.

"9preferve peace, order and good, government." In the

fame cafe he fays, "this writ ought to be ufed upon all
"4occafions where the law has eftablifhed no fpecific
"c remedy, and where in juftice and good government
"9there ought to be one."

In addition to the authorities now particularly cited,

many others were relied on at the bar, which fhow how
far the praalice has conformed to the general dotrines
that have been juft quoted.

This writ, if awarded, would be direded to an officer

of government, and its mandate to him would be, to ufe
the words of Blackftone, " to do a particular thing
" therein fpecified, which appertains to his office and
"c duty and which the court has previoufly determined,
cc or at leaft fuppofes, to be confonant to right and juf-
"ctice." Or, in the words of Lord Mansfield, the appli-
cant, in this cafe, has a right to execute an office of pub-
lic concern, and is kept out of poffeffion of that right.

Thefe circumftances certainly concur in this cafe.

Still, to render the mandamus a proper remedy, the

officer to whom it is to be direed, muft be one to whom,
on legal principles, fuch writ may be direted ; and the
perfon applying for it muft be without any other fpecific
and legal remedy.

ift. With refpe& to the officer to whom it would.I

direaed. The intimate political relation,' fubfifting be-
tween the prefident of, the United States and the heads
of departments, neceffarily renders any legal inveftigation
of the aks of one of thofe high officers peculiarly irkfome,
as well as delicate; and excites fome hefitation with refpe&
to the propriety of entering into fuch inveftigation. Im-
preffions are often received without much reflefion or
examination, and it is not wonderful that in fuch a cafe
as this, the affertion, by an individual, of his legal claims
in a court of juftice; to which claims it is the duty of
that court to attend j fhould at firft view be confidered
 SUPREME COURT U. S.

bMABvURY by fome, as an attempt to intrude into the cabinet, and to

IV. intermeddle with the prerogatives of the executive.
MADISON.

' It is fcarcely neceffary for the court to difclaim all pre-

tenfions to fuch a jurifdiaion. An extravagance, fo ab-
furd and exceffive, could not have been entertained for a
moment. Thr province of the court is, folely, to decide
on the rights of individuals, not to enquire how the exe-
cutive, or executive officers, perform duties in which they
have a difcretion. QOeftions, in their nature political,
or which are, ly the conftitution and laws, fubmitted to
the executive, can never be made in this court.

But, if this be not fuch a queftiori ; if fo far from

being an intrufion into the fecrets of the cabinet, it re-
fpe~ls a paper, which, according to law, is upon record,
ind to a copy of which the law gives a right, on the pay-
ment of ten cents ; if it be no intermeddling with a
fubje&, over which the executive can be confidered as
having exercifed any control ; what is there in the exalted
tation of the officer, which fhall bar a citizen from
afferting, in a court ofjuftice, his legal rights, or fhall for-
bid a court to liften to the claim ; or to iffue a mandamus,
direking the performance of a duty, not depending on
executive diferetion, but on particular a&s of congrefs
and the general principles of law?

If one of the heads of departments commits any ille-

gal a&, under color of his office, by which an individual
fuftains an injury, it cannot be pretended that his office
alone exempts him from being fued in the ordinary mode
of proceeding, and being compelled to obey the judgment
of the law. How then can his office exempt him from
this particular mode of deciding on the legality of his
condu&, if the cafe be fuch a cafe as would, were 'any
other individual the party complained of, authorize the
procefs ?

It is nt by the office of the perfon to whom the writ

is dire&ed, but the nature of the thing to be done that
the propriety or impropriety of iffuing a mandamus, is
to be determined. Where the head oI*a department aas
in a cafe, in which executive difcretion is to be exercifed ;
in which he is the mere organ of executive will ; it is
 FEBRUARY, 180 3. 17,
again repeated, that any application to a 'court to control, MAItBuR
inany rcfpe&, his cordu&, would be rejeaed without r,.
hefitation.M so.

But where he is direCted by law to do a certain ad af-

fe&ing the abfolute rights of individuals, in the perform.
ance of which he is not placed under the particular di-
redion of the Prefident, and tlhe performance of which,
the Prefident cannot lawfully forbid, and therefore is
never prefumed to .have forbidden; as for example, to
record a commiffion, or a patent for land, which has re-
ceived all the legal folemnities ; or to give a -copy of fuch
record ; in fuch cafes, it is not perceived on what ground
the cburts of the country are further excufed from the
duty of giving judgment, that right be done to an injured
individual, than if the fame fervices were to be perform.
ed by a perfon not the head of a department.

This opinion feems not now, for the firft time, to be

taken up inthis country.

It muft be well recollected that in 1792, an a& pafted,

directing the fecretary at war to place on the penfion lift
fuch difabled officers and foldiers as fhould be reported to
him, by the circuit courts, which adt, fo far as the duty
was impofed on the courts, was deemed unconflitutional;
but fome of the judges, thinking that the law might be
executed by them in the charader of commiffioners, pro-
ceeded to ad and to report in that charaaer.

This law being deemed unconftitutional at the circuits,

was repealed, and a different fyftem was eftablifhed; but
the queftion whether thofe perfons, who had been re-
ported by the judges, as commiffioners, were entitled,
in confequence of that report, to be placed on the penfion
lift, was a legal queftion, properly determinable in the
courts, although the acd of placing fuch perfons on the
lift was to be performed by the head, of a department.

That this queftion might be properly fettled, congrefs

paffed an a& in February, 1793, making it the duty of the
fecretary of war, in conjundion with the attorney gene-
,al, to take fuch meafures, as might be neceffary to obtain
an adjudication of the fupreme court of the United
 SUPREME COURT U. S.

MAl1URY States on the validity of any fuch rights, claimed under

v. the a& aforefaid.
MADISON.

~v~'After the paffage of this a&, a mandamus was movea

for, to be direc&ed to the fecretary at war, commanding
him to place on the penfion lift, a perfon ftating himfelf
to be on the report of the judges.

There is, therefore, much reafon to believe, that this

mode of trying the legal right of the complainant, was
deemed by the head of a department, and by the higheft
law officer of the United States, the moft proper which
could be felected-for the purpofe.

When the fubjeHl was brought before the court the de-
cifion was, not that a mandamus would not lie to the head
of a department, direffing him to perform an aC, enjoin-
ed by law, in the performance of which an individual had
a vefted intereft , but that a mandamus ought not to iffue
in that cafe-the decifion neceffarily to be made if the re-
port of the commiffioners did not confer on the appli-
cant a legal right.

The judgment in that cafe, is underftood to have de-

cided the merits of all claims of that defcription; and
the perfons on the report of the commiffioners found it
neceffary to purfue the mode prefcribed by the law fub-
fequent to that which had been deemed unconftitutional,
in order to place themfelves orl the peifion lift.

The doctrine, therefore, now advanced, is by no means

a novel one.

It is true that the mandamus, now moved for, is not

for the peiformance of an aCt exprefsly enjoined by
ftatute.

It is to dpliver a commiffion ; on which fubjeS the

afts of Congrefs are filent. Tlhis difference is not con-
fidered as affe~ting the cafe. It has already been ftated
that the applicant has, to that commiffion, a vefted legal
right, of which the executive cannot deprive him. He
has been appointed to an office, from which he is not
removable at the will of the executive ; and being fo
 FEBRUARY, 1803.

appointed, he has a right to the commiffion which the MARDURY

fecretary has 'received from the prefident for his ufe. V,
The a& of congrefs does not indeed order the fecretary MADISON.
of ftate to: fend it to him, but it is placed in his hands '*Y
for the perfon entitled to it; and cannot be more law-
fully withheld by him, than by any other perfon.

It was at firft doubted whether the a~tion of detinue

was not a fpecific legal remedy for the commifflon which
has been withheld from Mr. Marbury ; in which cafe a
mandamus would be improper. But this doubt has
yielded to the confideration that the judgment in detinue
is for the thing itfelf, or its value. The value of a public
office not to be fold, is incapable of being afcertained ;
and the applicant has a right to the office itfelf, or to
nothing. He will obtain the office by obtaining the com-
miffion, or a cqpy of it from the record.

This, then, is a plain cafe for a mandamus, either to

deliver the commi~fion, or a copy of it from the record;
:and it only remains to be enquired,

Whether it can iffue from this court.

The a& to eftabli{h the judicial courts of the United

States authorizes the fupreme court " to iffue writs of
" mandamus, in cafes warranted by the principles and
" ufages of law, to aipy courts appointed, or perfons hold
" ing office, unde,r"ie authority of the United States."

The fecretary of ftate, being a perfon holding an office

under the authority of the United States, is precifely
within the letter of the defcription ; and if this court is
not authorized to. iffue a writ of mandamus to fuch an
officer, it muft be becaufe the law is unconflitutional, and
therefore abfolutely incapable of conferring the authority,
and affigning the duties which its words purport to confer
and affign.

The conftitution vefts the who]- judicial power of the

United States in one fupreme court, and fuch inferior
courts as congrefs fhall, from time to time, ordain and efta-
blifh. This power is exprefsly extended to all cafes
arifing under the laws of the United States ; and confe-
quently, in fome form, may be exercifed over the prefent
 SUPREME COURT U. S.
MALuRT cafe ; becaufe the right claimed is given by a law of the
'V. United States.
MADISON.

~v'In the diftribution 9f this power it is declared that (( the

" fupreme court fhall have original jurifdi&ion in all
" cafes affeding ambaffadors, other public minifters and
" confuls, and thofe in which a ftate fhall be a party.
"In all other cafes, the fupreme court fhall have appellate
4c jurifdi&ion."

It has been infifted, at the bar, that as the original

grant of jurifdiition, to the fupreme and inferior c urts&,
is general, and the claufe, affigning original jurifdi&ion
to the fupreme court, contains no negative or rctlri&ive
words ; the power remains to the legiflature, to 0flign
original jurifdi&ion to that court in other cafes than thofe
fpecified in the article which has been recited ; provided
thofe cafes belong to the judicial power of the United
States.
If it had been intended to leave it in the difcretion of
the legiflature to apportion the judicial power between the
fupreme and inferior courts according to the will of that
body, it would certainly have been ufelefs to have proceed-
ed further than to have defined the judicial power, and the
tribunals in which it fhould be vefted. The fubfequent
part of the fe&ion is mere furpluffage, is entirely without
meaning, if fuch is to be the conftru6lion. If congrefs
remains at liberty to give this court appellate jurifdi&ion,
where the conftitution has declared their jurifdi6ion fhall
be original; and original jurifdidion where the conftitu-
tion has declared it fhall be appellate ; the diftribution of
jurifdidion, made in the conftitution, is form without
fubftance.

Affirmative words are often, in their operation, nega-

tive of other obje&s than thofe affirmed ; and in this cafe,
a negative or exclufive fenfe muft be given to them or
they have no operation at all.

It cannot be prefumed that any claufe in the confti-

tution is intended to be without effe&t ; and therefore
fuch a conftruaion is inadmiffible, unlefs the words
require it.
 FEBRUARY, x83.

If the folicitude of the convention, refpeaing our peace MARDBUIr

with foreign powers, induced a provifion that the fupreme M.
court fhould take original jurifdi&ion in cafes which MAIsoN.
might be fuppofed to affe& them ; yet the claufe would
have proceeded no further than to provide for fuch
cafes, if no further reftri&ion on the powers of congrefs
had been intended. That they fhould have appellate
jurifdi&ion in all other cafes, with fuch exceptions ae
congrefs might make, is no reftri&ion ; unlefs the words
be deemed exclufive of origirlal jurifdiaion.

When an inftrument organizing fundamentally a judi-

cial fyftem, -divides it into one fupreme, and fo many infe-
rior courts as the legiflature may ordain and eftablifh; then
enumerates its powers, and proceeds fo far to diftribute
them, as to define the jurifdi&ion of the fupreme courf-
by declaring the cafes in which it fihall take original jurifm.
di&ion, and that in others it Thall take appellate jurifdic-
tion ; the plain import of the words feems to be, that in
one clafs of cafes itsjurifdi&ion is original, andnot appel.
late; in the other it is appellate, and not original. If
any other conftruaion would render the claufe inopera-
tive, that is an additional reafon for reje&ing fuch other
conftru&ion, and for adhering to their obvious meaning.

To enable this court then to iffue a mandamus, it muft

be fhewn to be an exercife of appellate jurifdi&ion, or to
be neceffary to enable them to exercife appellate jurifdic-
tion.

It has been flated at the bar that the appellate jurif-

diction may be exercifed in a variety of forms, and that
if it be the will of the legiflature that a mandamus flould
be ufed for that purpofe, that will muft be obeyed.
This is true, yet the jurifdiCion muft be appellate, not
original.

It is the effential criterion of appellate jurifdi&ion,

that it revifes and correts the proceedings in a caufe al-
ready inftituted, and does not create that caufe. Although,
therefore, a mandamus -may. be direcded to courts, yet
to iffue fuch a writ to an officer for the delivery of a pa-
per, is in effet the fame as to fuftain an original a~tion
for that paper, and therefore feems not to be!ong to
 SUPREME COURT U. S.
MAARtBURT appellate, but to original jurifdicftion. Neither is it
'r. neceffary in fuch a cafe as this, to enable the court to
MADISO . exercife its appellate j urifdic ion.

The authority, therefore, given to the fupreme court,

by the a& eftablifhing the judicial courts of the United
States, to iffue writs of mandamus to public officers, ap-
pears not to be warranted by the confitution ; and it
becomes necefirv to eniquire whether a jurifdiffion, fo
conferred, can be exercifed.

The quef ion, whether an a&, repugnant to the confli-

tution, can become the law of the land, is a queftion
deeply interefting to the United States; but, happily, not
of an intricacy proportioned to its intereft. It feems only
neceffary to recognife certain principles, fuppofed to have
been long and well eftablifhed, to decide it.

That the people have an original right to eftablifli, for

their future government, fuch principles as, in their opi-
nion, fhall moft conduce to their own happinefs, is the
bafis, on which the whole American fabric has been
erewed. The exercife of this original right is a very great
exertion ; nor can it, nor ought it to be frequently repeat-
ed. The principles, therefore, fo eftablifhed, are deemed
fundamental. And as the authority, from which they
proceed, is fupreme, and can feldom at, they are defigned
to be permanent.

This original and fupreme will organizes the govern-

ment, and affigns,to different departments, their refpetive
powers. It may either ftop here ; or eftablifh certain
limits not to be tranfcended by thole departments.

The government of 'the United States is of the latter

defcription. The powers of the legiflature are defined,
and limited and that thofe limits may not be miftaken,
or forgotten, the conftitution is written. To what pur-
pofe are powers limited, and to what purpofe is that limi-
tation committed to writing, if thefe limits may, at any
time, be paired by thofe intended to be reftrained ? The
diftindion, between a government with limited and unli-
mited powers,. is abolifhed, if thofe limits do not confine
the perfons on whom they are impofed, and if aCts pro-
 FEBRUARY, 1803. 177

hibited and ads allowed, are of equal obliggtlon. It is a M0ARut

propofition too plain to be contefted, that the conifitution .
controls any legiflative a& repugnant to it ; or, that the MADISON.
legiflature may alteN the conftitutiou by an ordinariy a&.

Between thefe alternatives there is no middle groune.

The conititution is either a fupcrior, paramount law, un-
changeable by ordinary means, or it is on a level with ordi-
nary legiflative a&s, and like othcr ads, is alterable when
the legiflature fhall pleafe to alter it.

If the former part of the alternative be true, then a

legiflative ad contrary to the conflitution is not law : if
the latter part be true, then written conflitutions are ab-
furd attempts, on the part of the people, to limit a pow-
er, in its own nature illimitable.

Certainly all thofe who have framed writtefi conftitu-

tions contemplate them as forming the undamental and
paramount law of the nation, and confequently the the-
ory of every fuch government nuft be, that an ad of the
legiflature, repugnant to the conftitucion, is void.'

This theory is effcntially attached to a written confti-

tution, and is confequently to be confidered, by this court,
as one of the fundamental principles of our fociety. It is
not therefore to be loft fight of in the further confidera-
tion of this fubjt&.

If an ad of the legiflature, repugnant to the Conftitu-

tion, is void, does it, notwithfhanding its invalidity, bind
the courts, and obiige them to give it effed ? Or, in
other words, though it be not law, does it conflitute a
rule as operative as if it was a law ? This would be to
overthrow in fad what was efabfiifhed in-theory; and
would feem, at firft view, an abfurdity too grofs to be in-'
fifted on. It 'hail, however, receive a more attentive
confideration.

It is emphatically the province and duty of the judicial

department to fay what the law is. Thofe who apply
the rule to particular cafes, muft of necefity expound
and interpret that rule. If two laws conflid with each
*ther., the courts muft decide on thr operation of each.
z
 SUPREME COURT U. S.
MABuPT So if a law be in oppofition to the conifitution ; if
'u. both the law and the conflitution apply to a particular
M cafe fo that the court muff either decide that cafe con-
oT.ON.
'formably to the law, difregarding the conftitution ; or
conformably to the conifitution, difregarding the law;
the court muff determime which of thefe confliding
rules governs the cafe. This is of the very effence of
judicial duty.

If then the courts are to regard the conflitution ; and

the conftitution is fuperior to any ordinary adlt of the
legiflature;' the conftitution, and not fuch ordinary ad,
muff govern the cafe to which they both apply.

Thofe then who controvert the principle that the con-

Ritution is to be confidered, in court, as a paramount law,
are reduced to the neceffity of maintaining that courts
muff clofe their eyes on the conftitution, and fee only
the law.,

This dodrine would fubvert the very foundationi of

all written conftitutions. It would declare that an ad,
which, according to the principles and theory of our go-
vernment, is entirely void; is yct, in pradice, completely
obligatory. It would declare, that if the legiflature (ball
do what is exprefsly forbiden, fuch a&, notwithftanding
the exprefs prohibition, is in reality effedual. It would
be giving to the legiflature a practical and real omnipo-
tence, with the fame breath which profeffes to reftrid
their powers within narrow limits. It is preferibing li-
mits, and declaring that thofe limits may be paffed at
pleafure.

That it thus reduces to nothing what we have deemed

the greateft, improvement on political inftitutions-a
written conftitution-would of itfelf be fufficient, in
America, where written conititutions have been viewed
withfo much reverence, for rejeding the conftrudion.
But' the peculiar expreffions of the conflitution of the
United States furnifh additional arguments in favour of
its rejedion.

The judicial power of the United States is extended

to all cafes arifing under the conftitution.
 FEBRUARY, 1803. 179
Could it be the intention of thofe who gave this pow- MAlnULr
er, to fay that, in ufing it, the conftitution (hould not -T.

be looked into ; That a cafe arifing under the conftitu- !VAD SON
tion fhould be decided without examining the inftrument.
under which it arites-?

This istoo extravagant to be maintained.

In fome cafes then, the conftitution muft be looked in-

to by the judges. And if they can open it at all, what
part of it are they forbidden to read, or to obey?

There are many other parts of the conititution which

ferve to illuftrate this fubje&. -

It is declared that- no tax or duty fhall be laid on arti-

" cles exported from any ftate." Suppofe a duty on the
export of cotton, of tobacco, or of flour; and a fuit in-
ftituted to recover it. Ought judgment to be rendered
in fuch a cafe ? ought the judges to clofe their eyes on the
conftitution, and only fee the law.

The conifitution declares that " no hill of attainder or

" exp/fao law (hall be paired."

If, however, fuch a bill 1hould be paired and a perfon

fhould be profecuted under it ; muff the court condemn
to death thofe viffims whom the conititution endeavours
to preferve ?

" No perfon," fays the conftitution, "(hall be convi&ed

" of treafon unlefs on the te~fimony of two witneffes to
"cthe fame overt aa, or on confeffion in open court."

Here the language of the conftitution is addreffed efpe-

cially to the courts.. It prefcrit)es, direaly for them, a rule
of evidence not to be departed from. If the legiflatur¢
Thould change that rule, and declare one witnefs, or a con-
feffion out of court, fufficient for convilion, muft the
conftitutional principle yield to the legiflative a& ?

From thefe, and many other feleaions which might

be made, it is apparent, that the framers of the confti-
 SUPREME COURT U. S.

R4ARtSURY tution contemplated that inftrument, as a rule for the go-

v. vernment of courts, as well as of the legiflature.
•MA0I 'O N.

*'Why otherwife does it dired the judges to take an oath

to fupport it ? This oath certainly applies, in an efpecial
manne , to their condut in their official charater. How
immoral to impofe it on them, if they were to be ufed as
the inftruments, and the knowing inftrumepts, for .vio-
lating what they fwear to fupport !

rhe oath of office, too, impofed by the legiflature, is

completely demonftrative of the legiflative opinion on
this fubjei. It' is in thefe words, " I do folemnly
" fwear that I will adminifter juftice without refpe&
"to perfons, and do equal right to the poor and to the
"rich ; and that I will faithfully and impartially difcharge
CC all the duties incumbent on me as accord-
" ing to the beft of my abilities and underftanding, agree-
"ably-to the confitution, and laws of the United States."

Why does a judge fwear to difchargc his duties agrea-

bly to the conftitution of the United States, if that confti-
tution forms no rule for his government ? if it is clofed
upon him,, and cannot be infpeaed by him ?

If fuch be the real flate of things, this is worfe than

tolemn mockery. To prefcribe, or to take this oath, be-
comes equally a crime.

It is alfo not entirely unworthy of obfervation, that in

declaring what fhall be the fupreme law of the land, the
eonj/itution itfelf is firft mentioned ; and not the laws of
the United States generally, but thofe only which fhall
be made in purfuance of the conftitution, have that rank.

Thus, the particular phrafeology of the conftitution of

the United States confiris and ftrengthens the principle,
fuppofed to be effential to all written conftitutions, that
a law repugnant to. the conftitution is void ; and that
rourts, as well as other departments, are bound by that
inftrument.

'The rule muftobe difcharged.